THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 11 of 2007
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. R.D.
Kalhoro, Special Prosecutor NAB
Respondent : Dr. Mirza Raza Ali, Muhammad Moiz Kashmiei, Syed
Mumtaz Ali Shah Qadri and Shahad Ali Khan through Mr. Nisar Ahmed Tarrar
advocate
Date
of Hearing : 26.11.2021
Date
of decision : 30.11.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- The State through
Chairman NAB has filed this appeal under Section 32 of NAO 1999 against
impugned order dated 27.06.2007, passed by learned Accountability Court No.I
Sindh at Karachi in Reference No. 22/2006 (The State vs. Dr. Mirza Raza Ali and
others), whereby, the respondents have
been acquitted. Appeal was admitted to regular hearing.
2. Learned Special Prosecutor NAB has
contended that the learned Court below by the impugned order wrongfully and
illegally acquitted the accused/respondents despite the fact that there was
sufficient evidence against them on the record. It has been further argued that
learned trial Court did not evaluate the material available on record and
passed the order in slipshod manner. He, lastly submitted that instant
acquittal appeal may be allowed as prayed by setting aside the impugned order.
3. Learned advocate for respondents argued
that prosecution had withdrawn case against main accused which was pending
before trial Court, hence the learned Accountability Court while assigning
cogent reasons acquitted the respondents; that Article 25 of the Constitution
also guarantees that citizens are equal before law and entitled to equal
protection of law; that the instant appeal is incompetent as it was not filed on
direction of the Chairman NAB. Learned counsel for respondents
further argued that scope of appeal against acquittal is narrow and limited and
after acquittal of respondents, presumption of innocence is doubled.
4. In order to appreciate the contentions
of learned counsel for the parties, we have carefully gone the impugned order dated
27.06.2007, passed by learned Accountability Court No.I, Sindh at Karachi.
Relevant portion of the order is reproduced as under:
“After hearing the
DPGA and Mr. Anwar Tarique and Mr. Kazi Muhammad Ashraf Advocates and the other
advocates for the other co-accused I have come to the conclusion that if the
application U/s 31-B of NA Ordinance 1999 is allowed there will be a dent in
the case of the prosecution which goes to the root of the case as there are
specific allegations of preparation of indent, invoice and bills in collusion
with Dr. Mirza Raza Ali and Para No.4, 7 and 8 of the reference are reproduced as
under:
“4. That accused No.2 who was Additional Medical
Superintendent (Zakat) & Member of Health Welfare Committee (Civil Hospital
Karachi) deliberately assisted accused No.1 by giving approval for the issuance
of Cheque against fake/fictitious/forged invoices/ bills/indent forms.”
“7. That the
evidence collected during investigation establishes that by misusing their
authority, accused fraudulently or dishonestly have misappropriated Zakat funds
and thus by corrupt, dishonest or illegal means obtained for themselves
pecuniary advantage. The accused thereby committed the offence of corruption
and corrupt practices as defined in clauses (ii), (iv) and (vi) of section 9(a)
punishable under Section 10(a) of National Accountability Ordinance and
Schedule thereto.”
“8. That on
the appraisal of material and evidence placed before me, I am of the opinion
that it is just and proper to proceed further as there is sufficient incriminating
material to justify the filing of this reference. The matter is referred to the
Hon’ble Court within the meaning of section 16(c) National Accountability
Ordinance 1999.”
As regards the
observation made in the Order of Supreme Court of Pakistan that there is no
corruption in the Zakat funds and the amount have been disbursed amongst the
mustahiqeen and have not been converted to the personal gain of the accused.
The relevant paras of Order of Honourable Supreme Court of Pakistan are
reproduced as under:
“5. On the
other hand, Mr. Ainuddin, learned Deputy Prosecutor General, vehemently opposed
this petition. However, he could not deny that the purchase of the relevant
items was made with permission of the Committee and that cheques were issued
with joint signatures of petitioner of Hakim Maulana Muhamad Akbar Dars who was
ot joined as a co-accused. He also admitted that the alleged misappropriated
amount was not converted to personal use of petitioner but the same was used
for distribution amongst Mustahiqeen, although, in violation of prescribed
rules meant for disbursement of Zakat.
6. We have
given due attention to the oral submission of learned counsel for both the
parties and with their assistance we have seen the available record referred to
by them. The case as it , prima facie, appears is that the relevant times were
purchased with the permission of the Committee, cheques were issued by
petitioner with joint signature of petitioner as well as that of Hakim Dars who
was not joined as an accused. As per statement of learned Additional Deputy
Prosecution General the petitioner was not himself a beneficiary of the alleged
misappropriated amount, Mustahiqeen benefited largely.”
As regards
application U/s 265-K Cr.P.C is concerned the same has become infructuous as
the prosecution has filed application U/s 31-B of Ordinance.
In view of the
above position, the application U/s 31-Bof Ordinance is allowed while
application U/s 265-K Cr.P.C having been anfractuous is disposed off.”
5. A careful perusal of the impugned order
shows that trial Court has discussed in detail all material produced by the
prosecution at trial.
6. At the very outset, learned advocate for
the respondents emphatically argued that instant Acquittal Appeal was
incompetent as the same was filed without any specific direction from the
Chairman NAB to the Prosecutor General NAB. Reliance is placed upon an
unreported decision of the Honourable Supreme Court dated 08.04.2009 in the
case of State through Prosecutor General Accountability Bureau, Islamabad vs.
Muhammad Akbar Khan (Criminal Petition No.55/P of 2006). Mr. R.D. Kalhoro,
Special Prosecutor General NAB could not convert the submission made by learned
advocate for the respondents. In the present case it a matter of record that
prosecution had withdrawn case against main accused Dr. Allah Nawaz Kazi
pending before Accountability Court. So far the respondents are concerned,
Special Prosecutor NAB could not point out any misappropriation on their part.
Trial court had observed that misappropriated amount was not converted to the
personal use by the respondents, but it was used for distribution amongst
deserved persons, although it was in violation of the prescribed rules. Once
the prosecution had withdrawn the case against main accused, the respondents,
similarly placed, were also to be treated alike as provided under Article 25 of the
Constitution of Islamic Republic of Pakistan, which describes that all citizens
are equal before law and entitled to equal protection of law, however, it would
be applicable on the persons similarly placed or similarly situated.
7. The order
of acquittal recorded by the learned Accountability Court appears to be in
consonance with the principles of justice and therefore, we are not inclined to
interfere with the order which does not suffer from any illegality or miscarriage
of justice. In case of PLD 2001 SC 607 (Khan Asfandyar Wali vs. Federation of
Pakistan), the Hon'ble Supreme Court has taken notice of the fact that "in
the interest of good governance the officials performing their acts in good
faith should be protected otherwise they would be reluctant to take decision
and/or avoid or prolong the same on one pretext or another, which would
ultimately lead to paralysis of State-machinery and such a course cannot be
countenanced by the Supreme Court". The Hon'ble Supreme Court further expressed
need for protection to such officials where there was no direct evidence of any
corrupt motive or of any illegal gain. In the present case, the prosecution has
no evidence direct or indirect to establish any personal gain on the part of
the respondents.
8. It is also to be kept in mind that the
present appeal is against acquittal and the golden thread which runs through
the administration of criminal justice while hearing the appeal against the
acquittal is that even if two views are possible their innocence, the view
which is favourable to the accused should be accepted and the finding of
acquittal recorded by the Trial Court should not be disturbed by the appellate
Court. The reason is that while passing the order of acquittal, the presumption
of innocence in favor of the accused is re-enforced. In case of acquittal,
there is double presumption in favour of the accused. Firstly, the presumption
of innocence is available to him under the fundamental principle of criminal
jurisprudence that every person should be presumed to be innocence unless he is
proved to be guilty by a competent Court and secondly the accused having
secured an acquittal, the presumption of innocence is, re-enforced and strengthened
by the Trial Court.
9. So far appeal against acquittal is concerned, it appears that trial
Court has assigned sound reasons for recording acquittal in favour of
respondents. Moreover, after acquittal, acquitted accused has acquired
presumption of double innocence. It is settled law that the scope of
interference in appeal against acquittal is most narrow and limited, because in
an acquittal the presumption of innocence is significantly added to the
cardinal rule of criminal jurisprudence, that an accused shall be presumed to
be innocent until proved guilty; in other words, the presumption of innocence
is doubled. The Courts shall be very slow in interfering with such an
acquittal judgment, unless it is shown to be perverse, passed in gross
violation of law, suffering from the errors of grave misreading or non-reading
of evidence; such judgments should not be lightly interfered and heavy burden
lies on the prosecution to rebut the presumption of innocence which the accused
has earned and attained on account of his acquittal. Interference in a judgment
of acquittal is rare and the prosecution must show that there are glaring
errors of law and fact committed by the Court in arriving at the decision,
which would result into grave miscarriage of justice; the acquittal judgment is
perfunctory or wholly artificial or a shocking conclusion has been drawn.
Judgment of acquittal should not be interjected until the findings are
perverse, arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal of the evidence a different conclusion could possibly be arrived
at, the factual conclusions should not be upset, except when palpably perverse,
suffering from serious and material factual infirmities. Said accused
have acquired now a triple presumption of innocence which could not be
dispelled by Special Prosecutor NAB on any score. Reliance is placed on
the case of The State v. Abdul
Khaliq, (PLD 2011 SC 554).
10. For the
above stated reasons, we have no hesitation to hold that order of acquittal
passed by the trial Court is based on reasonable possible view, this Court
should not disturb the acquittal.
11. Considering
the facts and circumstances in wake of the above cited legal position, we do
not consider it to be a fit case to interfere it. Consequently, Accountability
Appeal against acquittal is dismissed.
JUDGE
JUDGE